Should I pay up or contest this?

Genuine_Essex_Lad

Fruitcake - here are the links to the pics, first is the original sign second and third are the new signs which have appeared on the wall since PP took their snaps PS sorry about the size but I uploaded them directly from my phone, also not the best quality as taken in the dark.

1) hxxp://i1085.photobucket.com/albums/j440/essexboy48/Forum%20Pics/Premier%20Park/IMG_3037_zpsb2dadb00.jpg

2) hxxp://i1085.photobucket.com/albums/j440/essexboy48/Forum%20Pics/Premier%20Park/IMG_3038_zps6144b6a6.jpg

3) hxxp://i1085.photobucket.com/albums/j440/essexboy48/Forum%20Pics/Premier%20Park/IMG_3035_zps40547d73.jpg

Coupon-mad - Thanks for the extra info, guess I'll wait now for them to send me my POPLA code.

Ryan_Bryan

http://i1085.photobucket.com/albums/j440/essexboy48/Forum%20Pics/Premier%20Park/IMG_3037_zpsb2dadb00.jpg

http://i1085.photobucket.com/albums/j440/essexboy48/Forum%20Pics/Premier%20Park/IMG_3038_zps6144b6a6.jpg

http://i1085.photobucket.com/albums/j440/essexboy48/Forum%20Pics/Premier%20Park/IMG_3035_zps40547d73.jpg

In your original post you said you were parked in a small side road. Would this be a public road rather than a car park?

Ryan_Bryan

Is it down this side street?

https://www.google.co.uk/maps/place/The+Farmers+Friend/@50.7172437,-3.5395392,3a,75y,135h,90t/data=!3m4!1e1!3m2!1sTXMBuoJgYJr-SA1byQ44AQ!2e0!4m2!3m1!1s0x0:0xe8b75cf8013ebf63!6m1!1e1

In which case it would have to be public. (Just a guess)

Genuine_Essex_Lad

Yes RB, that's the small side road between the shops and the railway. I'm guessing you know the area

I'm assuming the fact that if it is public means PP have no control over it at all?

However there is a sign stating it's private road.

Ryan_Bryan

Sorry. Never been to Exeter in my life. I just googled The Farmers Friend and it seems to be the only one. I just guessed it was public because of the BR sign pointing to access for St. Thomas station. One thing I'm pretty sure of is that the owner of the shop won't own the street. Premier are an Exeter based firm and the likelyhood is there's a connection between F.F and P,P somewhere along the line.

Genuine_Essex_Lad

OK, so I've now got my rejection letter from PP, along with my POPLA code. Checked it with the Parking Cowboys to check it's validity

In the reply from PP the sent a link to view the photos they have of my car, and you can see one of their signs on the wall behind my car, however after going to have another look, the sign is about 8 feet from the ground although the angle the photo was taken makes it look like the sign is placed just above roof level of the car!!

It should be noted that the photo which was sent on the NTK was cropped down from their original so the sign isn't visible on the NTK.

Anyway, here's a draft of my POPLA appeal - comments, alterations, hints & tips or extra info to include appreciated before I send it off.

Thanks in advance.

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss.
Their sign states the charge is for 'contravening the terms and conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the road was almost empty, furthermore as there are no parking meters or fees in operation there cannot be any loss of potential income, therefore the charge demanded far exceeds any loss to the landowner. If it exceeds any loss, it becomes a penalty.

The £60 charge asked for far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the road or “car park” is apparently for patrons of a shop only. In the appeal Premier Park did not address this issue, and have not stated why they feel a £60 charge is an appropriate pre-estimate of loss. For this charge to be justified a full breakdown of the costs Premier Park has suffered as a result of the car being parked on the road or “car park” is required and should add up to £60.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage - no contract with driver
I see that the sign is placed too high up to be clearly seen while driving (and indeed were NOT seen by the driver). Also, due to their high position, overall small size and the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.

The driver entered the road where there was an absence of yellow lines, marked parking bays and roadside plates in the area. Along with the fact that other cars were parked on the same road, the driver was led to believe that the zone was unrestricted. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

To be clear, the driver neither saw any signs nor knew about any terms & conditions which governed the road where the alleged parking violation occurred.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3) Lack of standing/authority from landowner
Premier Park has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Premier Park to strict proof of the contract terms with the actual landowner (not a lessee or agent). Premier Park have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Premier Park are entitled to pursue these charges in their own right.

I require Premier Park to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also, the PCN shows the offence of "NON PATRON", I put Premier Park to strict proof otherwise that the driver of the vehicle was not a patron of the store in question at the time of the alledged PCN

Schedule 4 para8(1): 'A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

The NTK is a nullity so no keeper liability exists.

5) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed to high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car parking area where the area is not full.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

You have described a postal PCN where there was no windscreen ticket first, yet they have sent it within a week or so. They can only do that if they use ANPR cameras yet you say an Operative took snaps with a camera. So this is like the ParkDirect regime at Uxbridge and I wrote a POPLA appeal with added points in it for this circumstance. It's linked in 'How to win at POPLA' in post #3 of the Newbies thread and has 8 or 9 appeal points to it which seem relevant to your case too (make sure you change the PPC name throughout by replacing 'Park Direct' with Premier Park').

Your appeal points above are fine - I just think it's a shame not to use the extra points re a 'drive-away' allegation too (such as there was no windscreen ticket, and the stuff about the KADOE contract with the DVLA) because a PPC can't do this.

Genuine_Essex_Lad

Quick update.

Got my result from POPLA today - Premier Park cancelled the PCN before the appeal date. All good.

Thanks to everyone for advice.